Just a reminder that paper and panel proposals for the LPE Project’s Conference, “Law and Political Economy: Democracy After Neoliberalism” (April 3-4, 2020, at Yale Law School) are due one week from today, September 15. You can find the call for papers here.

One clarification: Panel proposals should include a description of the panel as a whole and abstracts for each paper. Each of those pieces can be up to a page in length (e.g., a proposal for a 4-person panel could be up to 5 pages).

A few years ago I travelled to central Ghana, in the fertile farmlands west of Lake Volta. A global land rush was in full swing: large agribusiness plantation deals – “land grabs” for the critics – were announced at a dizzying pace in many low- and middle-income countries. This transition belt between Ghana’s forest zone and the northern savannah proved popular with international agribusinesses, and I came to understand the deals’ local impacts.

One day I spoke with a farmer who, until then, had made a living growing maize and yam. Shaded by a rough straw hat, the grey-bearded man retraced how a jatropha plantation took much of his land. He thought the compensation was not enough to get land elsewhere, and felt too old to establish a new farm anyway – or take a job with the plantation. He had some land left but knew they would come for that too. When that happens, he concluded, he would just stay at home.

I asked him how he felt about these developments. “I am unhappy about what happened”, he said, “but there was nothing I could do”. As a long-term migrant, he did not own the land: the power to allocate land rested with the traditional chief, who signed a lease with the company. Behind the farmer’s life-experience lay the way law structures property, territory and decision-making power. Confronting the issue alone seems impossible: it calls for a bold agenda of action and research that ties the global with the local.

By now, many of the societal, political, and distributive harms caused by large technology companies and so-called “social” media companies (Amazon, Facebook, Google, etc.) have been surfaced. They invade our privacy, decrease market competition, erode our sense of self and, despite their euphemistic label, our sense of community. Shoshana Zuboff’s new book—The Age of Surveillance Capitalism—intervenes to weave together the seemingly balkanized practices of large, monopolistic data-harvesting companies, painting a more comprehensive picture of their decidedly anti-social strategies. At the same time, she situates their tactics in comparative, historical context as a distinctively new market logic. Zuboff labels the emerging economic regime created by these tech companies “surveillance capitalism” in order to capture the transformative shift they represent in how our society is being organized—organized by surveillance capitalist corporations, not by the people. Put simply, surveillance capitalism is an economic ideology that deploys divergent technologies as a means of cultivating and monetizing our identities.

As Zuboff underscores, surveillance capitalists treat the information generated by our online activity and our situated, physical activity (collected through the Internet of Things) as raw material available for extraction—a pool of resources that Julie Cohen has theorized and critiqued as the “biopolitical public domain.” But even more troubling, once scythed and privatized by the surveillance capitalists, our information is sifted to predict and shape our future behavior. The shaping of our behavior by surveillance capitalists threatens individual autonomy, yes, but also popular sovereignty and democracy itself. This may sound hyperbolic, but Zuboff methodically explains how surveillance capitalism is undermining core democratic values and why the stakes are so high.

Laws
take. It’s what they’re for. Taxes take dollars from some people and distribute
them to other people. Traffic laws take away drivers’ opportunity to speed
through intersections. Zoning restrictions take from neighbors their ability to
build apartments in their backyards. Talk to me about a law’s requirements and
you’ll be talking about a taking.

The ubiquitous
nature of takings is why the Supreme Court’s decision in Knick v. Township
of Scott was, perhaps, its
most consequential decision of the last Term.
The case dramatically expanded the range of circumstances in which a
person can challenge a state or local law in federal court under the Takings
Clause, which states that “private property [shall not] be taken for public use,
without just compensation.” Given the current Court’s deregulatory impulses,
the end result could endanger many redistributive laws at the local level, including
inclusionary zoning rules, rent controls, and every other health and safety
regulation that “takes.”

Thanks to all of our wonderful readers for helping LPE Blog grow so much this year!

We’re taking a break for the month of August to bring you more of that LPE content you crave in September. Next year will be a big one for the LPE world, with launch of the Journal of Law and Political Economy and the LPE Project’s inaugural conference.

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Nancy Chi Cantalupo, Matthew Cortland & Karen Tani –

In an earlier post in this series, two of us (Cortland and Tani) described how the notice-and-comment process has entered the arsenal of a range of groups and organizers, many seeking to challenge the policies of the current administration. We made the case by highlighting grassroots efforts to explain to the public what notice-and-comment is and how to participate in it. The effects of these efforts seem clear. Note the more than 1,800 comments on Kentucky’s 2016 request for a Medicaid Section 1115 waiver (seeking to impose a work requirement, among other changes). Or consider the 266,000+ comments to the Department of Homeland Security after the agency proposed a rule that would make an immigrant’s use (or likely use) of public benefits grounds for inadmissibility.

Here we discuss a type of organizing that has followed in the wake of mass commenting efforts, focused on analyzing the content of comments and ensuring their due consideration. Our central example comes from the Department of Education’s recent notice of a proposed rulemaking (NPRM) regarding the meaning of Title IX for complaints of sexual harassment (an umbrella legal term that includes sexual violence). Perhaps unsurprisingly, given the activism around the ED’s interpretation of Title IX in the Obama years, the agency recorded over 124,000 comments—and spurred the creative cataloging initiative we spotlight here. By analyzing comments themselves, participants in this initiative seek to support public engagement with administrative law and vindicate the democratic values at the heart of notice-and-comment mandates.

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Sophia Z. Lee –

For the first time in nearly a century, the conservative scholars, judges, lawyers, and advocacy groups challenging the constitutional foundations of the modern administrative state have reached a critical mass. At stake is the structure of American government and its ability to address issues at the heart of political economy, from countering corporate power to protecting workers and the environment.

But these critics may be inviting in a Trojan Horse. Because most of them locate the Constitution’s meaning at the time of its ratification (an approach known as originalism), history plays a central role in their challenges. These days, they blame the administrative state’s fall from constitutional grace on the Progressive Era. However, as I argue in a forthcoming article, returning to 19th century administrative law would smuggle in an unwelcome consequence: largely eliminating judicial review of the constitutionality of agency action. As a result, they may have to choose between their originalist attack on the modern administrative state and preserving a type of court review they value highly.

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Matthew Cortland and Karen Tani –

In June 2016, five months before the election of President Donald Trump, Senator Elizabeth Warren wrote a post for the Regulatory Review on “corporate capture of the regulatory process.” It highlighted myriad opportunities in the rulemaking process “for powerful industry groups to tilt the scales in their favor.” The “notice and comment” process offered a key example: “industry insiders and their highly-paid allies” produce “an avalanche of detailed, well-funded, well-credentialed comments,” Warren observed, which administrators must consider if the eventual rulemaking is to survive judicial review.

Fast forward three years, into an administration that has besieged the administrative state—questioning its legitimacy, demoralizing its personnel, slowing the pace of regulation, and withdrawing from important regulatory realms. In this anti-regulatory moment, notice-and-comment might seem a quaint artifact from a bygone age: with such meager regulatory output, especially aimed at industry, what is left to comment on? Instead, however, notice-and-comment has become a key tool of opponents of the current administration—a vehicle for mobilizing “grassroots experts” and enabling marginalized voices to speak against dehumanizing agency action.

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

David Barton Smith –

In January 1966, the Johnson administration faced a regulatory battle between a risk-averse federal executive branch and the demands of a grassroots social movement. Starting on July 1, 1966, federal Medicare funds would begin to account for more than 25% of the revenue of the nation’s 6,000 private acute care hospitals. Medicare would serve as the first real test of Title VI of the 1964 Civil Rights Act, which banned the allocation of any federal funds to entities that discriminated on the basis of race. The success of Title VI would depend on forging a strong relationship between officials administering the program and the civil rights movement. The change that ultimately resulted from this collaboration offers a concrete example of how democratic movements can leverage grassroots pressure, public enforcement and government spending power to transform sectors of the economy.

This post is part of our symposium on Medicare for All. You can find all the posts in the series here.

Nathan Cortez –

The Affordable Care Act of 2010 was the most significant health legislation since Congress created Medicare and Medicaid in 1965, breaking a half-century of health policy incrementalism. But thanks to the Senate, the final bill failed to include a “public option.” And thanks to the Supreme Court, many states rejected Medicaid expansion. Ultimately, the ACA preserved private insurance as the main source of coverage, rendering the act much more incremental than originally envisioned.

Almost a decade later, we are seeing more ambitious reform ideas like “Medicare for All” which until very recently was a political nonstarter. My contribution to this symposium argues not only that some version of Medicare for All is necessary, but also that it may not be as radical as critics claim.